This matter is before the Authority on exceptions to an award of
Arbitrator Morris E. Davis filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Rules and Regulations. The Agency filed an opposition to the
Union's exceptions.

An employee filed a grievance alleging that he was entitled to
additional experience credit and to a retroactive temporary promotion longer
than the 120-day temporary promotion granted to him by the Agency. The
Arbitrator sustained the grievance in part and, as a remedy, directed the
Agency to provide the grievant with additional experience credit in his
personnel file.

The Union excepts to the Arbitrator's failure to grant the grievant a
retroactive temporary promotion longer than the 120-day temporary promotion
granted to him by the Agency. For the following reasons, we conclude that the
award must be remanded to the parties for resubmission to the Arbitrator for
his reconsideration of the award in view of Authority precedent as discussed in
this decision.

II. Background and Arbitrator's Award

The grievant is a GS-11 Logistics Management Specialist. The grievant
contended that he had performed GS-12 duties as early as 1985 and that he
should have received a permanent promotion retroactive to 1985. In September
1987, the Agency conducted a desk audit of the grievant's position which,
according to the grievant, indicated that he was performing GS-12 duties. The
grievant did not file a classification request or a grievance.

The Agency conducted another desk audit of the grievant's position in
April 1990. Based on the results of that desk audit, the Agency determined that
the grievant had been performing GS-12 duties. The desk audit also resulted in
recommendations that the grievant be temporarily promoted rather than being
credited with GS-12 experience in his personnel file. Subsequent to the desk
audit, the grievant was given a 120-day temporary promotion retroactive to
September 1989, and his personnel file was credited with GS-12 experience from
September 1989.

The grievant filed a grievance which was not resolved and was submitted
to arbitration. The Arbitrator stated the issue as follows:

Is [the] [g]rievant entitled to additional credit in his 201
[personnel] file for GS-12 experience, and entitled to a temporary promotion
[for] up to two (2) years, to include the 120-day temporary promotion already
received?

Id. at 2.

Before the Arbitrator, the grievant testified that a former supervisor
had requested a desk audit of his position in 1987, and "the results indicated
that he was performing GS-12 duties." Id. at 7. The grievant also
recalled that a former supervisor "made assurances that his position would be
upgraded[,]" but "nothing happened." Id. The grievant stated that his
"position should have been upgraded to GS-12, retroactive to 1985[,]" the time
at which he had first started to perform GS-12 duties. Id. at 8. The
grievant also stated that he had not filed a prior grievance "because he
thought the issue would eventually be resolved." Id.

The grievant's current supervisor testified that he had not provided
supervision to the grievant "[b]etween the period of February 1989 to July
1989." Id. at 9. He also stated that the "[g]rievant functioned as a
logistics officer and FMS [Foreign Military Sales] country manager[,]" and
noted that the "FMS country manager position is classified at the GS-12 level."
Id. The grievant's supervisor, however, "could not confirm the claim
that [the] [g]rievant had performed GS-12 responsibilities since 1985."
Id.

The Arbitrator found that Article 13.03 of the parties' collective
bargaining agreement, 5 C.F.R. § 335.102, Federal Personnel Manual (FPM)
chapter 335, subchapter 1-5, and AFR 40-335 "require [the] utilization of
inservice competitive procedures for temporary promotions which exceed 120
days." Id. at 14. The Arbitrator also found that although temporary
promotions granted in accordance with 5 C.F.R. § 335.102 may be extended
for a period of time up to 2 years with prior Office of Personnel Management
(OPM) approval, the "[g]rievant's claim does not involve a temporary promotion
governed by competitive procedures." Id.(*) Therefore, the
Arbitrator found that the grievant was "not entitled to a retroactive 2-year
temporary promotion." Id.

With respect to the grievant's claim that he should have been granted a
temporary promotion retroactive to 1985, the Arbitrator found that: (1) the
grievant had not documented the 1987 desk audit results; (2) assertions by the
grievant that he had received prior supervisory assurances that his position
would be upgraded constituted hearsay evidence; (3) assertions that GS-12
duties had been performed did not constitute a preponderance of the evidence;
and (4) even assuming that the grievant had performed GS-12 duties since 1985,
the grievant's claim would be untimely under Article 6, section 6.07 of the
parties' collective bargaining agreement.

However, based on the evidence before him, the Arbitrator found that
the grievant had been "performing GS-12 duties as early as February 1989."
Id. at 15. The Arbitrator also found that the parties' collective
bargaining agreement and applicable regulations limited the grievant's
temporary promotion to 120 days. Noting that the Agency had not explained why
the grievant should not have received the appropriate amount of service credit,
the

Arbitrator stated that "the Agency acted arbitrarily in determining that
[the] [g]rievant's experience credit began on September 3, 1989." Id.
Therefore, the Arbitrator sustained the grievance in part and directed the
Agency to correct the grievant's personnel file to reflect GS-12 experience
from February 1989 to June 15, 1990. The Arbitrator made the following award:

1. The Agency is hereby directed to correct [the] [g]rievant's 201
file to reflect the performance of GS-0346-12 duties from the period of
February 1989 through June 15, 1990.

2. The Arbitrator retains jurisdiction for the sole and limited
purpose of resolving disputes, if any, over the remedy.

Id.

III. Positions of the Parties

A. The Union's Exceptions

The Union contends that the Arbitrator's failure to award the grievant
a retroactive temporary promotion is inconsistent with Article 13.01 of the
parties' collective bargaining agreement, which, according to the Union,
"establishes a non[]discretionary Agency policy requiring temporary promotions
after an employee performs higher[-]graded wor[k] for a certain period of
time." Exceptions at 3. Relying on Department of the Army, New Cumberland
Army Depot and American Federation of Government Employees, Local 2004, 21
FLRA 968 (1986) (New Cumberland Army Depot), the Union argues that
"[t]he Authority has ruled that such provisions empower an arbitrator to grant
retroactive temporary promotions with back[]pay[,]" for a period of time up to
two years. Id. According to the Union, because the Agency violated a
nondiscretionary policy permitting temporary promotions, the "Agency cannot
simultaneously violate a rule and then hide behind it." Id.

The Union also contends that the Arbitrator did not "carefully read the
governing regulations." Id. at 4. The Union states that "there is
nothing in the regulations limiting the number of non[]competitive temporary
promotions an employee may receive." Id.

The Union does not dispute the portion of the Arbitrator's award
granting service credit to the grievant. However, the Union requests that the
Authority modify the award to grant the grievant a retroactive temporary
promotion for longer than 120 days or that the Authority remand the case to the
Arbitrator for further proceedings.

B. The Agency's Opposition

The Agency contends that the Union's exceptions constitute nothing more
than disagreement with the Arbitrator's interpretation of the parties'
collective bargaining agreement. According to the Agency, the Arbitrator
"concluded that the grievant was not entitled to a retroactive temporary
promotion for any period of time based not only on specific regulatory
provisions, but upon language of the parties' [c]ollective [b]argaining
[a]greement, as he interpreted it." Opposition at 3.

The Agency also contends that the Union's reliance on the decision in
New Cumberland Army Depot is misplaced. The Agency argues that in New
Cumberland Army Depot, the arbitrator specifically found that: (1) the
grievant was regularly and consistently assigned to the higher-graded duties;
(2) the agency had violated the parties' collective bargaining agreement; and
(3) the language of the contract required that an award of backpay be made.
Further, the Agency argues that the Authority, in New Cumberland Army
Depot: (1) reduced the arbitrator's finding of an entitlement to a
temporary promotion for 4 years to a 2-year retroactive temporary promotion;
and (2) modified the award "because of insufficient evidence to show that the
grievant was at all times otherwise qualified for the higher[-]graded
position." Id. at 4. The Agency argues that "there is a vast difference
between having gained creditable experience for a specific period and having
been 'regularly and consistently assigned to higher[-]graded duties' so as to
qualify for any conceivable temporary promotion." Id. The Agency
requests that the Authority deny the Union's exceptions and sustain the
Arbitrator's award.

IV. Analysis and Conclusions

For the reasons discussed below, we will remand the award to the
parties for resubmission to the Arbitrator for the purpose of obtaining a
clarification of the award consistent with this decision.

We note at the outset that the period following September 3, 1989, for
which the grievant has received a temporary promotion of 120 days and service
credit for the performance of GS-12 duties, is not in dispute in this case. The
issue here concerns whether the grievant is entitled to a retroactive
noncompetitive temporary promotion for the period from February 1989 to
September 3, 1989. With respect to this issue, the Arbitrator stated as
follows:

[B]ased upon the totality of the evidence, including the 1990 desk
audit findings and [the grievant's supervisor's] undisputed testimony, it has
been sufficiently shown that [the] [g]rievant was performing GS-12 duties as
early as February 1989. While the aforementioned contractual provision and
applicable regulations limit [g]rievant's temporary promotion to 120 days, the
Agency has failed to demonstrate why he should not have received the
appropriate amount of experience credit.

Award at 15.

It is well established that, if an agency's violation of a collective
bargaining agreement results in the denial of a temporary promotion to which a
grievant would otherwise be entitled under that agreement, an arbitrator may,
consistent with applicable law and regulations, award a noncompetitive
temporary promotion with backpay to that grievant for a period of up to 2
years. See, for example, United States Air Force, Oklahoma
City Air Logistics Center, Tinker Air Force Base, Oklahoma and American
Federation of Government Employees, Local 916, 42 FLRA 886 (1991)
(Tinker AFB).

In Tinker AFB, we addressed the agency's contention that the
arbitrator's award ordering that the grievant be given a retroactive
noncompetitive temporary promotion was contrary to FPM chapter 335, subchapter
1-5a(1), which requires the use of competitive procedures for temporary
promotions in excess of 120 days. We found that, although the agency did not
use competitive procedures, it was clear that the agency assigned the grievant
the grade-controlling duties of a higher-graded position and violated the
parties' collective bargaining agreement by failing to temporarily promote the
grievant. Id. at 888. We rejected the agency's argument that its failure
to act in accordance with the FPM excused its violation of the parties'
agreement. We held that "where parties to a collective bargaining agreement
provide for the temporary promotion of employees assigned to perform the work
of higher-graded positions, an arbitrator may order temporary promotions, with
backpay, in accordance with that agreement." Id. (citing U.S.
Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project
Office, Boulder City, Nevada and American Federation of Government Employees,
Local No. 1978, 40 FLRA 1169, 1174 (1991)).

Here, the Arbitrator specifically found, as noted above, that the
grievant had been performing GS-12 duties since February 1989. However, the
Arbitrator concluded that he could not award the grievant a noncompetitive
retroactive temporary promotion for that period because the parties' collective
bargaining agreement and applicable regulations limited such promotions to 120
days. The Arbitrator did not specify the regulation or regulations to which he
referred. The Arbitrator discussed only three regulations, however: (1) 5
C.F.R. § 335.102; (2) FPM chapter 335, subchapter 1-5a(1); and (3) AFR
40-335.

In view of our decision in Tinker AFB, we find that FPM chapter
335, subchapter 1-5a(1) would not bar the grievant's retroactive noncompetitive
temporary promotion. Moreove